Bava Batra 170b — the Talmud in English

And even Rabbi did not ![](pamud.bmp "

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say this except in order to clarify.

For Rabbi Judah too agrees that had he not made that superfluous claim, he would not have had to prove it; and only because he made that claim does Rabbi hold that he is obligated to prove it. If so, it is reasonable that he should not suffer a loss because of a superfluous statement that he made.

“And I too do not need to bring the witnesses before whom I repaid, because even without them I would be believed to say: ‘I repaid you between you and me’”?

He said to him,

Rabbi Yitzhak Nappaḥa:

I too am saying this only in order to clarify.

This is indeed my view: the halakha follows Rabbi, that a person must clarify all his claims, and if he does not, he loses the case. And they also brought from the Gemara in Shevuot [41b] that there was an incident involving one who claimed, “I repaid you in the presence of so-and-so and so-and-so,” and those witnesses came and said, “There was no such matter.” Rava said that nevertheless he is exempt from paying, because milta de-lo ramya alei de-inish lav adatei—a matter that does not rest upon a person’s responsibility does not enter his mind. Since he is not obligated to claim that he repaid in the presence of witnesses, he did not take notice of whether he paid in the presence of witnesses or not. And apparently this contradicts our sugya. And they wrote that it is possible to say that Rava follows Rabban Shimon ben Gamliel, who says that one need not clarify his words. And they further wrote that perhaps even Rabbi said only that one must initially bring them if they are available, in order to fulfill the requirements of Heaven [and perhaps he will be apprehensive about bringing them lest they contradict him and he be shamed, and therefore he will pay him or reach a compromise with him. Or, if the witnesses come and say that they know with certainty that he did not pay him, they will be believed]; but if they say, “There was no such matter,” the borrower should not be obligated, in accordance with Rava’s words. Tosafot, s.v. “except in accordance with,” based on the Maharsha and the Maharshal. Rabbenu Gershom explains that Rabbi Abba argued to him that Rabbi said only that they trouble him to bring the document, but if he did not bring it, this does not prevent him, and he is believed even without the document; and likewise, we too are believed even if I did not bring the witnesses. Rabbi Yitzhak Nappaḥa replied to him: I hold that Rabbi’s view is that the document is indispensable, and he is not believed without it; and you too are not believed without the witnesses. The Rashba wrote that the halakha does not follow Rabbi Yitzhak Nappaḥa, who compares Rabbi’s ruling to the matter under discussion between Rabbi Abba and Rav bar Yosef. Rather, the halakha follows that man de-amar in Sanhedrin [23b] who says that Rabbi said that one must clarify only in the case of a claim of possession and a document, where the entire claim of possession derives only from the document. For if a person merely claims, “I have possessed this field for three years,” this is not a claim of possession; rather, it is specifically when he claims, “You sold it to me by means of a document, and it was lost to me.” Therefore, since he said that the document is in his possession, he must bring it. But with two claims that are not dependent upon one another, such as here, where the borrower’s credibility in claiming “I paid” does not derive from the witnesses, even Rabbi agrees that although he said, “I repaid you in the presence of witnesses,” he nevertheless need not bring them. And Rava in Tractate Shevuot likewise holds this way; therefore he said that even if the witnesses come and contradict him, he will be exempt.

Mishna:

One who repaid part of his debt,

who was obligated to his fellow on the basis of a document in the latter’s possession, and the borrower is concerned lest the lender later return and claim the entire debt with this debt-document, while the lender does not agree to deposit the document with a third person who is trusted by both of them.

Rabbi Judah says: He should exchange

the document for another document for the amount remaining of the debt, and he should tear up the first document.

Rabbi Yosei says: He should write

the lender to the borrower

a receipt,

an acknowledgment for the amount that was repaid, and the borrower should keep the receipt as proof until he repays the entire debt.

Rabbi Judah said:

If the lender does not exchange the document for another document for the balance of the debt, but merely writes the borrower a receipt for the partial payment

it follows,

that

this

borrower

must guard his receipt from the mice!

For if the mice eat the receipt, the lender will be able to collect from him with the document in his possession even the portion that the borrower already paid.

Rabbi Yosei said to him

to Rabbi Judah:

It is fitting,

indeed it is proper

for him

the borrower to be obligated to guard his receipt so that it does not become lost, in order that he hasten to pay the remainder of the debt; and then he will receive the debt-document from the lender and tear it up,

and this person’s power should not be weakened,

the lender’s, by the writing of another document. For if the lender writes a new document, the lien-time of the second document will be only from the day on which he repaid part of his debt and the second document was written in it, and the lender will not be able to collect the debt from the purchasers who acquired property from the borrower between the date of the first document and the date of the second document.

Gemara:

Rav Huna said in the name of Rav: The halakha is neither in accordance with Rabbi Judah,

who holds that the lender must exchange the debt-document in his possession for a new document for the amount of the remaining balance of the debt,

nor in accordance with Rabbi Yosei,

who holds that the lender need not exchange his document, but writes the borrower a receipt for the amount of the payment he received toward the debt.

Rather, the court tears up the document and writes him another document

for the balance of the debt,

from the original date. And the Gaon Rabbi Elhanan Wasserman raised an objection in Kovetz Shiurim [sec. 633]: In every place where Rav and Rabbi Yoḥanan disagree, the halakha follows Rabbi Yoḥanan. If so, we hold like Rabbi Yoḥanan, who holds that Rav is not a tanna, and it is difficult: how do we rule here according to Rav against the Mishna? The Gaon Rabbi Elhanan Wasserman brought this difficulty before Rabbi Chaim, may the memory of the righteous be a blessing, of Brisk, and he answered that in truth even an amora may disagree with a tanna; it is merely not the practice of an amora to disagree with a tanna. Therefore, the Gemara raises the words of a tanna against the words of an amora, because had the amora known the words of the tanna, he would not have disagreed with him. However, where the amora explicitly disagreed with the words of the tanna, it is possible that the halakha will follow him. Therefore, here, where Rav explicitly disagreed with the words of a tanna, since he regarded himself as a tanna, although we rule according to Rabbi Yoḥanan that Rav is not a tanna, nevertheless it is possible that the halakha follows Rav, since he explicitly disagreed with the words of the tanna. This is how the view of Tosafot should be explained. There is another view concerning this, namely that of Rav Sherira Gaon in his Epistle. He holds that there were amoraim who stood at an intermediate level between the tannaim and the amoraim, such as Rabbi Ḥanina, Rabbi Yannai, and Rav, who were disciples of Rabbi. They would disagree with tannaim, and amoraim would also disagree with them. The Ramban explained in his novellae [Bava Batra 131a] that what the Gemara raises from the words of a tanna against the words of an amora applies only when the words of the tanna were taught in a Mishna or a beraita. But if they were stated in the language of a meimra, it is possible to disagree with the words of the tanna. Rabbenu Yonah likewise wrote in Alayot: “And although it is not the practice of an amora to disagree with the tannaim, that applies to a matter that they concluded in a Mishna or a beraita.” And so it appears from the language of the Gemara in Gittin [42]: “It is a meimra. And Rava does not hold like a meimra,” and Rashi explained: It is merely a meimra, and it is neither a Mishna nor a beraita. And Kovetz Shiurim explained that the distinction between a meimra and a Mishna is that Mishnayot and beraitot were arranged with the agreement of all the scholars of the generation, whereas a meimra was stated according to the view of the tanna who himself said it.

Rav Naḥman said to Rav Huna—and some say Rav

Yirmeya bar Abba said to Rav Huna: If

Rav had heard this beraita, as it is taught

below in the words of Rabbi Judah, concerning one who repaid half his debt, that the

witnesses

of the first document

tear up the document and write him

for the lender

another document

for the balance of the debt

from the original date, he would have retracted his view.

Rav would have retracted what he said, that specifically the court tears it up, and he would not have disagreed with Rabbi Judah, who said that even witnesses may tear up the document and write him a new document according to the date of the first document. For what difference is there whether the court does this or the witnesses do it?

He said to him,

Rav Huna: Indeed

he heard it

Rav heard this beraita,

but

nevertheless

he did not retract his view.

Rav did not retract his view; rather, he disagrees with Rabbi Judah in the beraita and holds that specifically the court may write the second document according to the date of the first document, but not the witnesses. The Mishne la-Melekh wrote [Lender and Borrower 23:12, s.v. “and know”] that one should not infer from the Tur’s words that, from the second date, the witnesses write a document without the borrower’s knowledge. For the Tur is speaking of one who writes a second document with the knowledge of both parties, and therefore they write it from the second date; but without the borrower’s knowledge, they do not write a document even from the second date, in accordance with the view of the Shakh.